Could California use language in Texas’ new abortion law to ban assault weapons?

Texas Politics

AUSTIN (Nexstar) — After the U.S. Supreme Court’s decision Friday to leave Texas’ restrictive abortion law in place, other states are already planning to mirror the law but not for abortion.

The way the Texas law (Senate Bill 8) is written enables private citizens to sue anyone who aids or abets an abortion after cardiac activity is detected in the womb for a minimum of $10,000. The result so far has been a chilling effect on almost all abortions in Texas, as clinics are too afraid to face any legal challenges at all.

Over the weekend, California Gov. Gavin Newsom vowed to use part of that clause to effectively ban the sale of assault weapons.

During oral arguments last month, justices, even conservative Justice Brent Kavanaugh, expressed concern over other states using this mechanism.

“Second amendment rights, free exercise of religion rights and free speech rights could be targeted by other states,” Kavanaugh said during the arguments.

It was also cited in Justice Sonia Sotomayor’s dissent Friday. “The Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” her dissent read in part.

“Skeptics on both the left and the right were worried, because SB 8 creates mechanisms for bypassing federal courts and federal review of these laws and creates this novel kind of bounty hunting approach that insulates statewide officials from enforcement responsibility,” Texas Politics Project director Jim Henson explained.

Newsom’s announcement on social media is just the first to do so. In a statement, Newsom said he directed his staff to work with the Legislature on a bill that would “create a right of action allowing private citizens to seek injunctive relief and statutory damages of at least $10,000 per violation … against anyone who manufactures, distributes or sells an assault weapon or ghost gun kit.”

But constitutional law experts like Josh Blackman call Newsom’s statement a political show.

“As it stands now, California already regulates guns quite heavily. They’re able to do this, because the courts have held those measures. So I’m not really sure what the private enforcement action actually yields,” Blackman said. “I can’t fathom California takes the power away from the Attorney General. They’re not going to remove their own authority to prosecute various acts.”

Blackman said he doesn’t expect other states to use the same construct for other issues until the Supreme Court rules on the Mississippi Dobbs case in the spring, which will decide the fate of Roe vs, Wade.

“This private enforcement mechanism is sort of like a stop-gap. It’s a temporary measure until the court gets to the heart of the matter, which is Roe v. Wade. If the court upholds Roe v. Wade, I think we’ll see a lot more similar laws,” Blackman explained.

If Roe vs. Wade is overturned, states will automatically then have much more latitude with abortion restrictions.

Henson pointed out, too, that although SB 8 is the trigger for these conversations, the hyper-partisan buildup dates back much further.

“What we’re seeing now is both cause and effect. This is not new in terms of the the intensity of these battles and a real willingness on the partisans to ignore both institutional norms and a political culture that has always looked at institutions to soften the edges of these conflicts,” Henson said.

“Checks and balances and separation of powers are supposed to help ameliorate some of those impulses. And but they kind of do, but they do seem to depend on there being less polarization. So I think in the long run, what we’re going to see is continued ideological conflict with this kind of approach,” Henson explained.

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